Illinois Will Contest / Trust Contest Attorneys
DuPage County Estate Litigation and Trust Litigations
Creating a will allows an individual to direct what happens to his or her property after death, and who is responsible for managing that process. A trust can be used as an alternative means of passing property after death, or to provide for loved ones, charitable interests, and others during the grantor’s lifetime. But, these important purposes can be disrupted when there is a question as to the validity of the will or trust.
These conflicts can be stressful, since they usually involve disputes among family members–often recently bereaved family members. They can also be complicated. If you’re considering contesting a will or trust, or if you are an administrator or trustee facing a contest, it is in your best interest to consult an experienced estate litigation attorney as early as possible.
Will Contests
As the term suggests, a will contest arises when a beneficiary or other interested party challenges the validity of a will. In Illinois, a party with standing–someone whose financial interests would be affected by the probate of the will–can contest a will on any grounds that would show the will is not the deceased’s valid, current will. The most common grounds include:
- Lack of Testamentary Capacity: You’ve probably heard the phrase “being of sound mind.” To create a valid legal document, including a will, the creator must have the mental capacity necessary to make reasoned decisions. If the testator is unable to understand the issues and formulate a plan due to cognitive decline, an impairment such as Alzheimer’s disease or a brain tumor impacting function, or even medications being administered at the time the will was drafted, the probate court may determine that the testator lacked the capacity to execute a valid will.
- Fraud or Forgery: Fraud and forgery may take many forms, including someone forging the testator’s signature or the witnesses’ signatures and the testator being tricked into signing the will. Some examples of this type of trickery might include swapping out a will with the terms the testator had agreed to for another document or leading the testator to believe he or she was signing something else.
- Undue Influence: Undue influence occurs when another person’s influence over the testator is so significant that the testator isn’t exercising his or her own will. While anyone can exercise undue influence, courts most carefully scrutinize those who enjoy a fiduciary relationship with the testator. That means someone in a position of trust, such as an attorney or guardian. If a fiduciary relationship exists, a presumption of undue influence arises and the burden shifts to the fiduciary to show that there was no undue influence.
- Revocation: In some cases, the will submitted to probate may have been executed by the testator, free from influence or deceit and while of sound mind, but has been revoked. The most common means of revoking a will is to execute a new will that explicitly revokes any prior will. But, a will may also be revoked through destruction of the will with the intent to revoke, the creation of a later inconsistent will, or a written revocation executed under the same terms required for a will.
How Do Will Contests Work?
Any person or entity with standing to contest a will may file a petition to contest the validity of the will. The petition must be filed within six months of the admission of the will to probate. The executor of the estate has a duty to defend the validity of the will. If he or she fails or refuses to do so, the court can appoint a special administrator to defend the will.
Will contests can be complicated, particularly when the issue before the court is the testator’s capacity or state of mind at the time the will was executed. Since will contests arise only after the testator’s passing, the most important witness to the process of preparing and executing the will is unavailable.
If you are considering challenging a will or are the executor in a probate matter where a will contest has been filed, it is important to talk with an experienced probate litigator as soon as possible. Not all estate planning attorneys have the knowledge and experience necessary to successfully navigate a will contest.
Trust Contests
Trust contests are similar to will contests in that a trust may be challenged for the same types of reasons. Like will contests, these typically fall into two categories: failure to follow the required legal form, and an allegation that the trust document doesn’t reflect the grantor’s true intentions.
One key difference between a will contest and a trust contest is the way those proceedings are initiated. Since a will is submitted to probate and an estate opened through the probate court, there is already a legal proceeding underway. The petition to contest is filed within that case.
Trusts aren’t administered through the courts, so a trust contest must be filed as a fresh legal proceeding.
Talk to an Experienced Trust and Estate Litigator
Will contests and trust contests can be difficult from a legal perspective, draining on a personal level. If these proceedings aren’t managed correctly, they can also deplete estate or trust assets. When conflict arises over the validity of a will or trust document, you’ll want to seek guidance from an attorney experienced in handling this type of litigation.
At Roberts & Caruso, we make it easy for family members, beneficiaries, executors and trustees to get the help they need with will and trust contests. We offer free, no-obligation consultations to help you understand the process and make good decisions about your next steps.
You can schedule yours right now by calling 630-510-1800 or filling out the quick contact form on this site